O.B.Cs
Of J&K – Fighting
For Their Fundamental Rights
Since Independence

By
Ashok Kumar Basotra

10 Ocotber,
2008Countercurrents.org

Perhaps
India is the only democratic country in the World where one has to
fight for his/her Fundamental Rights enshrined under the Constitution.
And the mockery is that one has to wait for ages even if the Apex
Court directs for providing said Fundamental Rights within stipulated
period of time. Same is the plight of O.B.Cs in J&K State.

On persistent
and strindent demand of neglected Socially and Educationally Backward
Classes of providing reservation to them, who had no or inadequate
representation in the employment in the Government jobs in the Central
and State Governments, the Government of India appointed Ist Backward
Classes Commission popularly known as “KAKASAHEB KALELKAR COMMISSION”
on 29th Jan., 1953 which submitted its report on 30th march, 1955
listing 2399 castes as Socially and Educationally Backward Classes
in the country on the basis of criteria evolved by it. In pursuance
to the report of aforesaid commission, the J&K State Government
appointed a committee for identification of Backward Castes / Classes
vide Order No: 826-C of 1956. But the people of Backward Castes /
Classes of J&K State were constantly ignored and discriminated
against in the matter of recruitment in Government Services, Public
Sector Establishments, Educational Institutions and allied fields
in the State.

Again the
J&K Government ultimately succumbed to genuine and reasonable
demand of the Backward Classes and, in consultation with Union Government,
appointed Shri P.B. Gajendra Gadkar Commission vide Government Order
No: 876-D of 1967 dated 06-11-1967 and the said Commission made 42
recommendations out of which recommendation Nos: 7 and 8 pertain to
Backward Classes which are reproduced herein below:-

“(7)
The following multiple criteria be adopted for determining which classes
should be treated as Backward:-

(1) The
economic backwardness of the Class.
(2) The occupation or occupation pursued by that Class of Citizens.
(3) Their places of habitation.
(4) The average of student population per thousand in that Class.
(5) Castes, in relation to Hindus.

(8) The existing list of Backward Classes should be revised and a
fresh list shown up by a high powered Committee after applying the
multiple criteria, mentioned above, relating to Social, Educational
and Economic Backwardness.”

Pursuant
to the aforesaid recommendations made in the report of the Commission
of Inquiry (Chairman Dr. P.B. Gajendra Gadkar) the State Government
vide Government Order No: 2520-GAD of 1969 dated 03-02-1969 appointed
a Committee (Chairman Justice J.N.Wazir) to draw list of Backward
Classes of J&K State on the basis of criteria relating to social,
educational and economical backwardness.

Having
regards to the report made by the Backward Classes Committee (Chairman
Justice J.N.Wazir), the Government of Jammu and Kashmir vide Notification
No: 37-GD of 1970 dated 29th April, 1970 framed “The J&K
Scheduled Castes and Backward Classes (Reservation Rules) 1970”
and the Government also sanctioned rules dealing with reservation
of posts to be filled up by the Promotion vide Notification No: 60-GD
of 1970 and framed “The J&K Scheduled Castes Backward Classes
(Reservation of appointment by promotion) Rules 1970” with following
reservations:

Whereas
the aforesaid Rules came up to the scrutiny of the Hon’ble Supreme
Court of India and the Hon’ble Supreme Court while pointing
out certain defects therein directed the State Government that till
defects were cured, the Rules were not capable of being given effect
to, so far as these pertain to reservation for Backward Classes.

The Government
of Jammu & Kashmir with a view to remove the defects in the rules
as per verdict of Supreme Court of India, constituted a Committee
appointing Justice Dr. A.S.Anand (now retired Chief Justice of India)
as Chairman vide Government Order No: 540 of 1976 dated 22.09.1976.

Justice
Dr. Adarsh Sen Anand Committee submitted its report to the Government
in September 1977 and on the recommendations of the Justice A.S.Anand
Committee, Notification vide S.R.O. No: 272 dated 03.07.1982 was issued
by the Government to provide following reservations:

In the
meanwhile, with a view to determining and investigating the conditions
of Socially and Educationally Backward Classes in India as per Article
340 of the Constitution, on Ist January 1979, under a Presidential
Order, Second Backward Classes Commission known as MANDAL COMMISSION
was appointed under the Chairmanship of Shri B.P.Mandal to verify
the conditions of Socially and Educationally Backward Classes. The
aforesaid Commission commenced its functioning on 21.3.1979 and completed
its works on 12th December, 1980 and identified 63 Castes / Communities
as Socially and Educationally Backward Classes in J&K State and
recommended 27% Reservation for these Castes in J&K State on the
basis of Social and Educational Backwardness. The Mandal Commission
had not recommended any reservation for “Residents of Backward
Area or Area adjoining the Actual Line of Control” in J&K
State or in any other part of India.

That the
recommendations of Shri B. P. Mandal Commission were challenged before
the Hon’ble Supreme Court of India in a case titled “Indira
Sawhney etc. vs. Union of India and others” AIR 1993 SC 477
in which Hon’ble Supreme Court of India vide its Judgment dated
16.11.1992 issued following directions of the Government of India,
to the State Governments and the Administrations of the Union Territories:-

“123
(A) The Government of India, each of the State Governments and the
Administrations of Union Territories shall, within four months from
today, constitute a permanent body for entertaining, examining and
recommending upon requests for inclusion and complaints of over inclusion
and under inclusion in the lists of other backward classes of citizens.
The advice tendered by such body shall ordinarily be binding upon
the Government.

(B) Within
four months from today the Government of India shall specify the basis
applying the relevant and requisite socio-economic criteria to exclude
socially advanced persons / sections (creamy layer) from “Other
Backward Classes”. The implementation of the impugned O.M. dated
13th September 1990 shall be subject to exclusion of such socially
advance persons (Creamy layer).”

1. Despite
that, no reservation till date has been provided to the socially and
Educationally Backward Castes / Classes as per recommendations of
the Mandal Commission Report upheld by the Supreme Court of India.
The State Government had to implement the judgment within four months
but the State Government, which was under Governor Rule at that time,
in order to play fraud with the Backward Classes appointed retired
Justice K. K. Gupta Commission (Creamy Layer Commission) working of
which was totally an eye wash as the said Commission worked only on
the report of over ruled Anand Committee – 1977 whereas the
Hon’ble Supreme Court in its Judgment in Mandal Commission case
has provided 27% Reservation to the Socially and Educationally Backward
Classes / Castes identified by the B.P.Mandal Commission in the J&K
State. This fraud can very well be judged from Notification vide S.R.O.
126 of 1994 dated 28-06-1994 forming new categories for reservation
purposes:
a) Scheduled Castes - 8%
b) Scheduled Tribes - 10%

2. The
State Government had also appointed Retired Justice Malik Sharief-ud-Din,
Retired Justice I.K.Kotwal, Retired Justice G.L.Raina, Retired Justice
Muzaffar Jan, as Chairman of Permanent Commission for Backward Classes
on different occasions, but same was an eye wash as the Ist Commission
was disbanded after about three years without any working and the
second Commission had not yielded any fruitful results and the third
Retd. Justice G.L.Raina Commission had also worked against the Mandal
Commission Identified Castes and Communities and made attempts to
include the Backward Area in the List of Socially and Educationally
Backward Classes which is totally against the recommendations of the
B.P.Mandal Commission Report – 1980 and the verdict of the Hon’ble
Supreme Court of India. The Castes / Classes can be Socially and Educationally
Backward due to their Stigma of Social Backwardness because its membership
is hereditary in nature. Once one is born into these Social Castes,
its membership is involuntary, even if one ceases to follow that occupation,
still he remains and continues to be a Member of that group bearing
stigma of “Social Backwardness” which remains with the
individual and the same is never changed. The present Commission is
also working on the same pattern but it has submitted a report in
the year 2005-06 for enhancement of reservation quota of Social Castes
from 2% to 27% as per the judgment of Supreme Court of India on Mandal
Report, despite that no action has been taken by the State Government
so far.

It is worthwhile to mention here that on 04.03.2004, Jammu and Kashmir
Reservation Act, 2004 was passed and then, the Reservation Rules were
framed vide S.R.O.294 in October 2005 which is again a reproduce of
S.R.O.126 of 1994 for Socially and Educationally Backward Classes
(Social Castes). The inclusion of Backward Area and Area adjoining
to Actual Line of Control under Section 2(o) of the Act and Rule 4(c)
of SRO of 2005 is against the provisions of Article 15(4), Article
16(4) and Article 340 of the Constitution of India and also against
the recommendations of B.P.Mandal Commission upheld by the Hon’ble
Supreme Court of India. The O.B.Cs of J&K State strongly oppose
the inclusion of “Backward Area” and “Area adjoining
to Actual Line of Control” under the definition of Socially
and Educationally Backward Classes, as the Residents of Area cannot
carry the stigma of Social Backwardness. Moreover, Mandal Commission
when visited Jammu and Kashmir during the year 1979-80 had not recommended
Area-wise reservation on geographical basis. Further National Commission
for Backward Classes, New Delhi, has not accepted RBA and ALC reservations
for Central Government Services.

Despite
being above 60% of the population of Jammu and Kashmir State from
amongst all the religions viz., Hindus, Muslims, Sikhs and Christians,
the real OBCs don’t have even single MLA/MLC/MP from said State
who can represent them and raise their issues on the floor of the
house. This is another major factor that Backward Class people in
J&K State are suffering a lot and not getting their due benefits
since independence. Moreover, the Mandal Commission had already been
implemented in rest of India and O.B.Cs of other States have been
enjoying the benefits of reservation for the last more than two decades.

A fare
survey of the population of J&K State would prove that O.B.Cs,
S.Cs & S.Ts from amongst Hindus, Muslims, Sikhs, Bodhs and Christians
constitute approximately 85% of the total population of J&K State.
Rare are the people who know that S.Cs who are converted from Hindus
to Muslims also fall in the category of O.B.Cs alongwith those O.B.Cs
who had been converted from Hindus to Muslims. For instance, a ‘Nai’
in Hindus and a ‘Hajjam’ in muslims both are O.B.Cs(Barbers),
but a ‘Doom’ in Hindus is S.C. and a ‘Doom’
in Muslims is O.B.C. Though the Mandal Commission had identified 63
Castes in J&K State, but some of these castes had been given the
status of S.Cs and S.Ts by the Government of J&K. Out of rest
54 Castes, 25 Castes have been given the status of Weak & Under
Privileged Classes (Social Castes) as on date, and remaining 29 Castes,
which are totally ignorant and illiterate, unable to represent for
their inclusion in the list of Social Castes as they are so backward
that they hardly know the procedure to be followed for their inclusion,
are still at the mercy of the Permanent Commission for Backward Classes
which is always headed by High Caste Retired Justices of J&K State
till date. And one more irony is that all these Castes are also fighting
for getting the status of & recognition as “O.B.C.”.

DEMANDS:

The genuine
demands of O.B.Cs of J&K State pending since independence, more
specifically since 16-11-1992, the date of passing of judgment by
the Apex Court in Mandal Case, are as under:-

(b) To
issue single O.B.C. Certificate forever, applicable in J&K State
as well as other States and Central Government jobs/institutions.

(c) To
amend The Jammu & Kashmir Reservation Act, 2004 and The Jammu
& Kashmir Reservation Rules, 2005 to the extent that Section 2(o),
6 & 9 of the said Act defining “Socially & Educationally
Backward Classes” and Rules 4, 9(iii), 13(iii), and 15(c) of
said rules providing unconstitutional reservation to “Residents
of Backward Area” and “Actual Line of Control” are
declared illegal and unconstitutional, thus quashed.

(d) To
remove “Creamy Layer Embargo” from O.B.Cs reservation.

(e) To
constitute Advisory Board for O.B.Cs in J&K State.

(f) To
amend/modify J&K State Commission for Backward Classes Act, 1997
to the extent that all the members including Chairman of said Commission
must be appointed from amongst O.B.Cs only, i.e. as per Annexure-“D”
to S.R.O. 294.

(g) To
amend/modify Sub-Section (2) of Section (1) of The National Commission
for Backward Classes Act, 1993 to the extent that the words “except
the State of Jammu and Kashmir” are deleted so that the Act
is extended to the State of J&K as it is already extended to rest
of India.

(h) To
include the following remaining castes, from the list of J&K O.B.Cs
as per Mandal Commission Report, into the present list of O.B.Cs i.e.
Annexure-“D” to S.R.O. 294 :-

i. The
classification of Socially and Educationally Backward classes cannot
be on the basis of geographic, climatic or backwardness of an area.

ii. That
reservation under Article 16(4) is meant to include those socially
backward castes, which had been stigmatized for centuries and as a
result of which were both socially and educationally backward and
under represented in the services under the state.

iii. The
indicators for determining socially and educationally backwardness
have been clearly laid down by the Hon’ble Supreme Court in
the said Mandal Case. The Hon’ble Supreme Court of India has
held that Social and Educational Backwardness must be due to historical
injustice suffered merely because of the accident of birth into a
particular social group.

iv. It
has also been laid down by the Hon’ble Supreme Court of India
that the educational backwardness should be the direct result of social
backwardness.

v. That
the purpose of 16(4) was to compensate those who have been left out
of the race of life for social and historical reasons and past discrimination
that persists to this day.

vi. It
has also been laid down by the Hon’ble Supreme Court of India
that backwardness, which arises out of purely economic factors, would
not be that, which is contemplated in Article 16(4).

vii. The
reservation of Socially and Educationally Backwards is justified by
the very fact of their under the representation in the services.

viii. The definition of whole areas as backward and treating all residents
living therein as socially and educationally Backward is illegal.
It must be understood that in all these villages it is mainly the
lower castes that are subjected to indignities and deprivation of
educational opportunities. A classification based on backward castes
employing the yardstick prescribed by the Mandal and approved by the
Hon’ble Supreme Court of India would have directly benefited
only those among the backward areas who are genuinely deserving of
such reservation.

ix. That
classification based on the backwardness of the area or residence
near the Line of Control are not valid grounds for being classified
as socially and educationally backward for the purpose of reservation
under Article 16(4) of the Constitution.

x. Classifying
the entire area as backward would only benefit the powerful upper
castes living in these areas to the exclusion of the genuinely deserving
residents of these areas.

xi. That
such backward regions comprise people belonging to upper castes and
dominant communities, which are not backward. They would be sole beneficiaries
of the Reservation Policy as enacted in the said Act and Rules.

xii. That
Article 16(4) is exhaustive of reservation to be made in favour of
SC/ST and O.B.Cs. Reservations for other classes such as the physically
handicapped can be made only under Article 16(1).

xiii. That
purpose of Article 16(4) was to benefit such castes which were hitherto
unrepresented or not adequately represented in the services because
of past discrimination.

xiv. The
backwardness contemplated under Article 16(4) is mainly social.

xv. In
the present provision made in Rule 4(c) the truly backward and under
represented communities would be swamped out and all the benefits
would be enjoyed only by the upper castes and powerful groups.

xvi. That
more than 60% of the population of Jammu and Kashmir is made up of
other Socially and Educationally Backward Classes as defined by the
Hon’ble Supreme Court of India and a mere 2% reservation has
been made to be shared by over 60% of the population. This is nothing
but paying lip service to the intentions of the Constitution makers
as expressed in Article 15(4) and 16(4) read with Article 340.

xvii. That the intention of the J&K State Government, to defeat
and deny the Constitutional rights of the socially and educationally
backward classes, is apparent from the fact that to this date only
2% of the posts have been reserved for the socially and educationally
backward classes as envisaged by the Hon’ble Supreme Court of
India.

xviii.
That by reducing the quota of the real backward classes in the Mandal
Commission to merely 2%, a cruel joke has been played on the socially
and educationally backward classes, which are under represented in
the services.

xix. That
ironically on the one hand there is a permanent body to screen off
the creamy layer from amongst the socially and educationally backward
classes, but on the other hand definition of this class itself has
been expanded in such a manner that creamy layers have been included
by said impugned definition.

xx. The
commission has considered the representations made by the members
of the socially and educationally Backward Castes. The commission
had submitted its report to the State Government for consideration
and taking appropriate action for enhancement of reservation quota
from existing 2% to 27% in the month of February, 2006 for the castes
and communities included in Annexure – “D” to 2005
Rules (SRO 294) framed under the impugned Act.

xxi. That
if the J&K State Government is allowed to continue to make appointments
based on the current Reservation Policy as reflected in the Reservation
Act of 2004 and SRO-294 of 2005, it will further cause irreparable
loss of the Backward Classes with no hope of ever ending the injustice
being meted out to the class of people who are really Socially and
Educationally Backward vide Article 15(4) and 16(4) of the Constitution
of India.

xxii. That
Article 15(4), Article 16(4) and Article 340 are directly applicable
to the State of J&K as these are applicable to other States of
the Country; therefore, jurisdiction of National Commission for Backward
Classes must be extended to the State of Jammu and Kashmir as it is
already extended to rest of India.